49. A private act of parliament appears to have May be rebeen formerly considered as an assurance of so high lievedagainst. a nature, that although it was obtained by fraud, yet it could not be relieved against by any of the courts of law or equity, but only by the power that made it; that is, by parliament: and Mr. Booth, in the opinion which has been mentioned, lays it down that inferior jurisdictions are as much bound to submit to a private act of parliament, as the meanest subject; provided the record is right. They may expound or explain, keeping to the intention of the makers, but not question or impeach what the legislature has thought fit to enact as an act of parliament. If there be any grievance or irregularity, that must and can be remedied or rectified only by another act of parliament. 50. Sir William Blackstone has however said, that a 2 Comm.346. private act of parliament has been relieved against, when obtained upon fraudulent suggestions; and has cited two cases in support of this assertion.

51. The first of these is Richardson v. Hamilton, in which the Court of Chancery set aside an act of the house of assembly of Pennsylvania. It may be seen in the book of decrees for the year 1732, pa. 344, at the report office of the Court of Chancery.

52. The second is a case determined by the House of Lords on an appeal from the Court of Sessions in Scotland, which shall be stated from the Printed

Cases..!

Dom. Proc

Sir James McKenzie being tenant in tail of an M'Kenzie estate in Scotland called Roystoun, with the concur- v. Stuart, rence of his only son George, and of his nephew Sir 1754. George McKenzie, the two first remainder-men, obtained a private act to sell the estate for payment of certain debts, which were stated in the act to amount

to 51,350 merks Scots, or 2,852l. 15s. 6d. ; and the act expressly directed that the trustees should, out of the money arising from the sale of the estate, pay off the said sum of 51,350 merks Scots, and lay out the residue of the money in the purchase of other lands, to be entailed as the former ones.

Sir James McKenzie sold the estate, and prevailed on his son and nephew to consent that the whole purchase money should be paid to him without account, in consideration of his laying out 1,000l. thereof to the uses of the entail; and an agreement dated the 17th August 1739 was entered into for that purpose.

It was afterwards discovered that there were two debts included in the sum stated in the act of parliament, and in the agreement of the 17th August, as charges on the estate tail, which were in fact fictitious and fraudulent : in consequence of which Sir George M'Kenzie, who became entitled to an estate tail in the lands purchased, by the death of Sir James M'Kenzie, and his son George, brought an action in the Court of Sessions against the representatives of Sir James, and the trustees of the act of parliament, for an application of the residue of the purchase money, after payment of the just, true, and lawful debts, really affecting the entail, and for an account of what payments had been made.

It was objected that Sir George was, by the agreement of the 17th August, barred from calling for such an account.

The Lord Ordinary, by an interlocutor, found that "Sir George was not barred by the agreement from objecting to the debts, or from proving the same to be fictitious, and not real debts affecting the estate of

Roystoun, at the time of the sale;" and granted warrants for letters of incident diligence, for recovering the grounds and instructions of the said debts.

The representatives of Sir James M'Kenzie pleaded that the act of parliament, by reciting these debts as subsisting, and as charges upon the entailed estate, established them as such, was final, and excluded all examination on that head.

To this it was answered, that as to the purchaser of the estate, and all claiming under him, the act was final and conclusive; but with respect to the debts, it left them as they were. That the act supposed them really and bona fide due to third persons, who would therefore have right to the purchase money; but if paid, never meant them to be paid a second time; nor Sir James M'Kenzie, under a pretence thereof, to appropriate to himself the money for discharge of debts, which were either fictitious, or could not from their nature affect the entail. And that whether he had or had not done so, was a question no ways affected by the act.

The interlocutor of the Lord Ordinary was reversed by the Court of Sessions.

Upon an appeal to the House of Lords, it was contended that the recital of the debts in the act was all the information and suggestion of the parties. The enacting part, so far as it directed the discharge of those incumbrances out of the purchase money, only pursued the recital; which, if ill founded, from the misinformation of the parties, was not conclusive : and though the appellant, by having given his consent to the act, might be thought concluded; yet being drawn into such contract by Sir James M'Kenzie's misrepresentation of the true state of the debts who misled both the remainder-men and the legisVOL. V. D

Biddulph v. Biddulph, Rep. Office, Book A.1790. pa. 296.

lature; he had a right, as against Sir James's repre sentative, to inquire into the reality of the debts, and application of the purchase money. Nor could a consent, thus fraudulently obtained, any more stand in the way of the relief he sought, than it would in case of an ordinary transaction.

On the other side it was insisted that the debts and incumbrances specified in the act of parliament must be taken as they were recited between the parties to the act; for though a saving clause was inserted for the rights of those who were not parties, yet it was a binding law to those who were. The act directed the money arising by the sale of the lands and barony of Roystoun to be applied in payment of the debts, the amount of which was particularly stated; and the surplus only was to be laid out in the purchase of lands, to be settled in the order and course of succession provided by the entail.

The House of Lords ordered, that the interlocutor complained of in the appeal should be reversed; and that the interlocutor of the Lord Ordinary should be affirmed and ordered that the Court of Sessions should proceed thereupon according to justice and the rules of that Court.

53. The doctrine laid down by Sir William Blackstone has been fully confirmed by the following modern case, in which the Court of Chancery relieved against the express words of a private act of parliament.

54. Simon Biddulph by his will, made in 1730, devised his real estates, which he had charged with the payment of several sums of money, to trustees, upon trust to raise and pay all such debts as he should owe at the time of his decease, or so much thereof as his personal estate should not extend to pay; and to settle and assure the residue to his grandson Theo

philus Biddulph for life, without impeachment of waste, remainder to his first and other sons successively in tail, with several remainders over.

Simon Biddulph died in 1736, leaving the said Theophilus Biddulph his heir at law; who entered into possession, under the will of Simon Biddulph, of all the estates whereof he died seised; and upon the death of Sir Theophilus Biddulph of Lapley, in 1743, he became a baronet, and entered into possession of other estates, whereof Simon Biddulph had the reversion, expectant on the death of Sir T. Biddulph of Lapley, which were of considerable value, and charged with the payment of several sums of money; but the rents thereof were sufficient to keep down the interest of the incumbrances affecting the same.

By a private act of parliament passed in 27 Geo. II. intituled, "An Act for the sale of the settled estates of Sir Theophilus Biddulph, baronet, in the county of Stafford, &c. for raising money to discharge incumbrances affecting the same; and for laying out the surplus in the purchase of other lands, to be settled to the uses therein mentioned;" after reciting the several incumbrances on the said estates, and that the said Sir Theophilus Biddulph had, out of his own. money, raised and paid off 2,8197. 4s. or thereabouts, being the deficiency of the personal estate of Simon Biddulph, in the discharge of the remainder of his debts, which remained due to the said Sir Theophilus Biddulph, and charged on the settled estates, with a considerable arrear of interest; and reciting that it would be for the benefit and advantage of Sir T. Biddulph, and of all the persons claiming under the will of Simon Biddulph, if the incumbrances affecting the settled estates, which carried a high interest, were paid off and discharged, which could only be done by.